Australians go to the polls on 14 October 2023 to vote on Indigenous Constitutional Recognition

Julie Fraser, Assistant Professor of International law and human rigjts at Utrecht University, together with Australian students, writes about the referendum on the recognition of Indigenous Australians 

This Saturday, all eligible Australians will go to the polls to vote in a referendum on the recognition of Indigenous Australians in our Constitution. In Australia, a referendum is a public vote to change the Constitution. Referendums are rare in Australia, with the last one being held over 20 years ago in 1999 on the question of whether or not to become a republic. What does the present referendum in Australia relate to – and will it be successful? Some Australians at Utrecht University School of Law share their views.

Terra nullius, land belonging to no one

The Australian Constitution was enacted by British Parliament in 1900, following the arrival of British settlers to the continent in 1788. At that time, Europeans declared Australia to be ‘terra nullius’ – or land belonging to no one - and therefore suitable for conquering. As such, all of the Indigenous people living on the continent for the last 65,000 years were dispossessed and legally erased (until the High Court recognised native title rights in the Mabo case). The British at the time did not enter into a treaty with Indigenous people (like they did in New Zealand), and our subsequent Constitution does not reference them directly (but does grant powers to Parliament to make laws regarding ‘race’ in section 51xxvi).

Since the arrival of Europeans, Indigenous people (Aboriginal and Torres Strait Islanders or First Nations People) have been subject to ongoing violence. For example, last century the Government policy forcibly removed Indigenous children from their families in an endeavour to inculcate them with European values – as documented in the 1997 report Bringing them Home on the ‘Stolen Generation’. At the same time, Indigenous people are over-represented in Australian prisons, where their deaths in custody are more common than non-Indigenous Australians – as examined by a Royal Commission in the 1980s-90s.

Violence and discrimination

This ongoing violence and discrimination is reflected in the fact that Indigenous Australians have a shorter life-expectancy than non-Indigenous Australians – of around eight years. Formal initiatives aimed at ‘closing the gap’ between Indigenous and non-Indigenous Australia have unfortunately made minimal progress to date (see here). Racial discrimination, denial of self-determination and land rights, and lack of Constitutional status for Indigenous Australians has been raised by the UN, including the Committee on the Elimination of Racial Discrimination (see here).

In 2017, Indigenous leaders collaborated to develop the ‘Uluru Statement from the Heart’ which seeks to ensure Indigenous people are better heard and represented in decision-making processes. Specifically, it calls for: Voice, Truth and Treaty. The question currently before the Australian public is whether to amend our Constitution to recognise Indigenous people and to create an advisory body called the ‘Voice’, which will have the right to make non-binding representations to Government on topics relating to First Nations People. Creating a Voice to Parliament can be a mechanism to realise Indigenous rights that already exist in international law, such as the UN Declaration on the Rights of Indigenous Persons. Exact details of this body will be subsequently determined in legislation by Parliament.

As voting in Australia is compulsory, the question all eligible Australians will have to answer ‘yes’ or ‘no’ to is:

A Proposed Law: to alter the Constitution to recognise the First Peoples of Australia by establishing an Aboriginal and Torres Strait Islander Voice. Do you approve this proposed alteration?

Austrialian students on the referendum:

Emily Bell, bachelor student on exchange at Utrecht University (UU): “As a non-Indigenous Australian, the lead-up to this referendum has presented many constructive opportunities to reflect upon our nation’s history whilst listening to and learning from Aboriginal and Torres Strait Islander peoples. In 2023, I believe that constitutional recognition of Aboriginal and Torres Strait Islander peoples is a necessary step towards modern Australia formally acknowledging and deconstructing its colonial past.”

Royce Chiu, bachelor student on exchange at UU: "The proposed Voice is a step towards proper recognition and empowerment of Australia's Indigenous peoples within its institutions. Despite its opponents, an advisory body of this kind is legally sound and would be an uncontroversial proposition in many parts of the world. We now have the opportunity to enable better decision-making and outcomes for Australians who have faced unique challenges through their long history."

Julie Fraser, Assistant Professor in international law: “This proposal is a positive step in our history and seeks to make important symbolic changes to our Constitution. It will not be the conclusion of the matter, but an important beginning that gives us new tools and avenues to address our problems. The proposed Voice will hopefully benefit Indigenous people, but in fact all Australians stand to gain from listening to the knowledge of the world’s oldest living civilisation – particularly in relation to topics like climate justice.”

Matilda Kelly, master student in Public International Law: “Constitutional recognition and the creation of the Voice is a step in the right direction towards meaningful reconciliation. It has been quite disappointing to witness the spread of misinformation surrounding the upcoming referendum, when representative bodies similar to the Voice have already been implemented in many other jurisdictions with Indigenous populations. The Voice provides an avenue for a genuine long-term partnership between the Government and Aboriginal and Torres Strait Islander communities required to develop community-informed approaches to issues affecting these communities. Although it is not a solution in itself, I think that it's an opportunity for much needed progress too important to overlook.”

Lucy McHutchison, bachelor student on exchange at UU: “The upcoming referendum is an important step of substantive reform in Australia that aligns with the Uluru Statement of the Heart (2017), which called for a constitutionally enshrined Indigenous Voice.  Indigenous Australians have lacked constitutional recognition and a representative voice for far too long.  They have a right to be heard and properly represented in Parliament on matters that are important to them.  It’s so important that Australians educate themselves on the impact the Voice will have on Indigenous people, in order to make an informed decision regarding the referendum. Personally, I think it is a positive mechanism for participation, consultation and to constitutionally recognise Indigenous Australians.”

Hillary Montague, master student in Law & Sustainability: “Australia is still only beginning to acknowledge our past. I hope this referendum will pass with a strong majority to signal we are ready to listen and learn more from the ancient knowledge, culture and connection to country Indigenous Australians have kept alive for over 60,000 years. The Voice will hopefully help to enact what many Indigenous leaders have called for, “Nothing about us, without us.” 

Haris Yusoff, bachelor student on exchange at UU: “Indigenous Australian's continue to face discrimination manifested not only in settlor legal frameworks but also in the personal beliefs of many Australian’s. A major driver of this has been the persistent undermining of Indigenous customary laws, dispute resolution methods, and cultural values. The proposed referendum is the first major attempt to address this by formally recognising and integrating Indigenous Australia's into the country's key legal mechanisms.”